YI GANG YING v PETER J DOYLE PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, MEAGHER JA and GROVE AJA 2 May 1997 [1997] NSWCA 352 WORKERS COMPENSATION — periodic journey — motor traffic accident — dangerous behaviour of worker's vehicle — inference of fault in part or whole for injury — rejection by trial judge of suggested alternative causes The appellant was driving home from work upon a six lane freeway by-pass. The road was wet. His car moved across an adjacent traffic lane, a median strip, two oncoming traffic lanes and collided with another car approaching in a third lane. At the time a worker on a periodic journey was disentitled to compensation if injury was caused wholly or partly by his own fault. The trial judge inferred fault from the circumstances of the behaviour of the appellant's car. He rejected arguments asserting that the accident might have been caused by factors other than the appellant's fault. Held: No error by the trial judge has been demonstrated and his findings should not be disturbed. Mason P I agree with Grove AJA. Meagher JA I agree with Grove AJA Grove AJA This is an appeal by an applicant worker against an award by Burke CCJ in favour of the respondent given on 16 August 1996. Matters of common ground can be mentioned. First, the appellant sustained relevant injury on a periodic journey between his places of employment and abode shortly after 10.30 pm on 28 April 1993; second, that the respondent employer bore the onus of demonstrating (if it could) that the injury was wholly or partly the fault of the appellant and thereby disentitled him to benefit under the Workers Compensation Act 1987 and, third, that this appeal is not limited exclusively to error of law. The appellant left work driving a Mitsubishi motor car which he had purchased from a cousin shortly beforehand and at some time after certain repairs were made to it in about December 1992. I shall refer later to those repairs. The appellant was the driver and sole occupant of the car. He travelled west in Sydney Einfeld Drive, Bondi Junction which was described as a six lane freeway by-pass. Whilst negotiating a slow left curve the car moved to its right from the middle westbound lane and crossed in turn the adjacent lane, the median strip, two lanes allocated for eastbound traffic and then collided with a vehicle being driven by a Mrs Fraser in the third or northernmost eastbound lane. The appellant asserted that it was raining heavily at the time of the accident whereas Mrs Fraser said it was not raining at all. It was accepted that the roadway was wet. The central issue in the litigation was proof by the respondent of the appellant's relevant fault. The trial judge determined this in favour of the respondent. His final expression of finding was in these terms: "The only available inference appears to be 'driver error', some want of care on the part of the applicant. In those circumstances I am of the view that the respondent has established, on the probabilities, that the applicant's injury was caused partly or wholly by the fault of the worker." 2 UNREPORTED JUDGMENTS Grounds | and 2 in the appeal asserted: "1. His Honour's decision that the Appellant/Applicant was at fault, was wrong in the that it was contrary to the evidence and the weight of evidence and as such, amounted to an error at law. 2. His Honour's decision inferred a finding of driver error, or some want of care on the part of the Appellant/Applicant, when at law it was not open to him to do so, the onus of proving fault of the Appellant/Applicant not having been discharged by the Respondent." It was argued that his Honour's expression above quoted showed an error in approach being contrary to that required by the authority of GIO v Frederichberg 1968 118 CLR 403. Whilst it was acknowledged that his Honour was entitled to consider that the occurrence as described furnished an evidential resource manifesting fault on the part of the appellant, it was said to have been incumbent upon him specifically to assess whether he was satisfied that such fault had been proved. The evidence did not enable his Honour to identify a particular "driver error", but it was open to him to consider the alternatives to that available inference and having rejected them - as he did - adopt the inference of fault on the part of the appellant as his conclusion. The judgments in Frederichberg need to be read in the context of that appeal which arose out of a jury trial and specifically referred to appropriate directions to be given by a judge to such a tribunal of fact. Insofar as his Honour did not articulate his judgment in terms of the steps to be taken by a jury in proceeding to his conclusion I am unpersuaded that he has been shown to have fallen into error. It was argued that the existence of two possible explanations for the behaviour of the appellant's vehicle necessarily undermined any finding of the probability of fault on the part of the appellant and that, as such a probability depended upon the appropriateness of inference to be drawn from established fact, this Court would not so find. Inhibitions of the kind specified in Abalos v The Australian Postal Commission 1990 171 CLR 167 would not prevent intervention by this Court. The possibilities inconsistent with the appellant's fault were said to be two: a combination of water on the road and lack of tread on the rear tyres of the vehicle, or an unforewarned fracture of the caster adjustment rod affecting the operation of the front offside wheel. The second matter was germane also to argument developed in respect of ground 3 in the appeal. Judge Burke did not overlook the evidence concerning water or tyre condition. He observed that the appellant "does not suggest that he encountered any substantial water hazard which caused him to lose control of the vehicle - though he was invited' to adopt such a position." It was contended that this position, even though amounting to a concession by a party to the litigation, did not relieve his Honour of the responsibility to consider the issue independently. He did so. He expressed a conclusion that water and weather were "marginal factors at most if relevant at all." Any qualification inherent in his remarks does no more than recognize that every motorist venturing upon the road must encounter and cope with situations which are hazardous to varying degrees. The particular car operated by a front wheel drive propulsion system and the tread on the front tyres was not inadequate. The trial judge observed: "By and large it does not appear that condition of the tyres was a direct factor in the behaviour of the applicant's vehicle. Once the vehicle became uncontrolled commonsense could suggest, as is implicit in the evidence of Snr Const Mates, that recovery would not be assisted by the reduced traction of the rear wheels and would probably be impaired." URJ YI GANG YING v PETER J DOYLE PTY LTD (Grove AJA) 3 It was contended that the reference to a "direct" factor manifested error but his Honour used that word in connection with observations about the overall behaviour of the vehicle. The critical issue was whether the applicant was wholly or partly at fault for launching his car out of its lane and across the median strip and the oncoming lanes into the path of traffic. I am unpersuaded that his Honour was in error nor am I of opinion that the evidence should lead to a finding that road water or tyres (in combination or otherwise) derogated from the allocation of fault to the appellant. I turn to ground 3: "3. His Honour was in error in directing himself to find fault in the circumstances of dismissing mechanical failure as a possible cause of the subject accident." The situation regarding the caster adjustment rods attracted much attention at trial and on the appeal. On that issue Judge Burke's concluding remarks including the following: "On the balance of probabilities I would be of the view that it was unlikely that spontaneous fracture of a fatigued caster adjustment rod caused the applicant's car to behave as it did immediately prior to this collision. Such damage as was found to have occurred to the caster rod would most probably, in my view, have occurred as the result of the impact in the subject accident. In the end I am left with the situation that the mechanical condition of the applicant's vehicle seems to have played no part in initiating its aberrant behaviour on the particular occasion." It was submitted that these expressions showed that his Honour had reversed the onus of proof. I do not agree. A reading of the entire judgment shows that his Honour commenced by recognizing the compelling inference of want of care on the part of the driver (which I respectfully share) derived from the undisputed facts concerning the behaviour of the appellant's car leading to the collision and he proceeded to consider whether other factors might render deriving such an inference inappropriate. That method does not imply that the onus of proving fault had shifted from the respondent to the appellant. The caster adjustment rod was observed to have been fractured on inspection by the attending police officer Snr Const Mates. At trial he was asked questions on voir dire about his expertise and it was not subsequently challenged. He looked for clues indicating whether the observed fracture was old or new. He also noted that the rod was bent. Available information was also conveyed later to Mr Windgrove, a consultant engineer. He lacked the advantage of inspecting the damage firsthand. The trial judge examined the evidence of these witnesses. In relation to recited testimony of Const Mates he said: "To my mind the witness clearly communicated a definite view that since the caster rod was both bent and fractured the fracture could not, or would not be, a spontaneous fracture but the caster rod became fractured as a result of bending and the bending was most likely to have been the consequence of the impact." The appropriateness of that analysis of his evidence was not challenged. It was contended nevertheless that the opinion of Mr Windgrove as to the possible earlier induced metal fatigue was corroborated by the history of heavy frontal impact in which the vehicle had been involved and in relation to which damage had been repaired in the December preceding the accident. As against the potential of some latent defect being causative of the subject incident Mr Windgrove conceded that any bending of the caster adjustment rod would have 4 UNREPORTED JUDGMENTS been obvious to any mechanic looking at the relevant part. The repair had been carried out to the front wheel assembly in which area the rod is located. Reading the evidence supports his Honour's view that the damage to the rod was likely to have been impact damage. Indeed it could be said to become compelling. In summary it was put that the capacities of the possibilities of road water, lack of tyre tread and/or mechanical defect to detract from inferred and non specific fault on the part of the driver was such as to provoke a finding that the respondent had not discharged the onus of proving that the injury was wholly or partly the fault of the appellant. I consider the contention must fail. The unexplained behaviour of the vehicle would comprehend fault of the controller well within the meaning of that expression in the statute. I detect no defect in the judge's approach or reasoning and I view his assessment of the evidence as correct. On close analysis the appellant's contention concerning the causative combination of water and lack of tyre tread is speculative and Mr Windgrove's observations about latent defect in the caster adjustment rod are theoretical. The rejection of those hypotheses in the context of the observed behaviour of the vehicle being driven by the appellant made and makes the finding of fault on his part inevitable. The appeal dismissed with costs